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Loss of Chance in Medical Malpractice:

A Look at Recent Developments


The growing acceptance of this doctrine raises difficult public policy issues, as
well as concerns for the limits of medical professional liability
By Tory A. Weigand

HE acceptance and application of the


loss of chance doctrine in medical malpractice litigation continues to grow at an
alarming rate. While once only a minority
view, a majority of the jurisdictions that
have addressed the issue now favor application of the doctrine. What are the recent
decisions and developments, and what are
possible defense strategies?
THE DOCTRINE
In its purest form, loss of chance is a
doctrine permitting recovery of damages
for the destruction or reduction of prospects for achieving a more favorable outcome. It most often arises in failure to
diagnose cases, but it also has been recognized and applied in a variety of similar
instances in which a patient who already is
ill or stricken claims medical mistreatment
that resulted in the loss of a chance of a
better outcome. Absent timely diagnosis or
other alleged failure, so the argument goes,
the patients chances for cure or a more
favorable outcome would have been
greater, with the result a palpable loss deserving of compensation.
The effect of the doctrine is that it alters
the traditional more likely than not burden of proof. Under loss of chance, claimants are permitted to recover damages even
though they have only a 50 percent or less
chance of survival or a better outcome
prior to the negligence. Absent the special
treatment or recognition of loss that the
loss of chance doctrine affords, plaintiffs
otherwise would not be able to meet the
traditional burden of proof as to causation
(greater than 50 percent) as it is more
likely than not that the underlying condi-

IADC member Tory A. Weigand is a


partner in the Boston office of Morrison,
Mahoney & Miller, where he has a diversified litigation and trial practice in a variety of areas, including medical malpractice. He is a graduate of Colby College
and earned his J.D. cum laude at the New
England School of Law.

tion or disease caused the harm.


While the loss of chance doctrine can be
traced to both early contract and tort cases,
the most commonly cited modern source is
a 1981 Yale Law Review article by Professor Joseph King Jr., Causation, Valuation
and Chance in Personal Injury Torts Involving Pre-Existing Conditions Future
Consequences.1 This article is a must-read
for defense counsel as it has been widely
cited and discussed in virtually every jurisdiction that has adopted the doctrine.
APPLICATION
In theory, loss of chance is applicable to
any type of case in which the chances of a
better outcome have been diminished, although it has received limited acceptance
in non-medical malpractice actions. As to
medical malpractice, the doctrine has been
raised in a variety of contexts, including
claims for failure to call emergency services in a timely fashion,2 claims for failure
to make timely admissions to hospitals3
1. 90 YALE L.J. 1353 (1981). See also Joseph
King Jr., Reduction of Likelihood: Reformulation
and Other Retrofitting of the Loss-of-Chance Doctrine, 28 U. MEM. L. REV. 481 (1998).
2. Blinzer v. Marriot Intl Inc. 81 F.3d 1148,
1152 (1st Cir. 1996).
3. McBridge v. United States, 462 F.2d 72, 74-75
(9th Cir. 1972).

Page 302

DEFENSE COUNSEL JOURNALJuly 2003

and failures to defibrillate heart attack patients.4


The loss of chance doctrine most frequently arises in claims alleging negligent
failures to diagnose. In those instances, it is
alleged that a negligent delay in the diagnosis of a serious underlying condition or
disease, such as cancer, has resulted in the
loss or reduction of the chances of a more
favorable outcome, or even cure.
POLICY JUSTIFICATION
The primary justification for recognizing
loss of chance, as stated by King, is the
notion that life is precious and even the
loss of a small chance of cure or better result is deserving of compensation. A similar justification is the argument that acts of
negligence as to patients with poor prognoses should not go unredressed and that it
is fundamentally unfair to deny or permit
recovery based on whether the patient had
a 50 percent or greater chance of a better
outcome.
Proponents also assert that it is unfair to
deny recovery where any uncertainty as to
outcome was caused by the defendant, another argument made by King. Another
common justification is that without loss of
chance, healthcare providers may be less
inclined to treat ill patients or to perform a
full spectrum of testing in less than optimum cases.
SURVEY
A. Recognizing Loss of Chance
A survey of the 50 American states reveals that 24, as well as Puerto Rico, have
adopted a form of the loss of chance doctrine in medical malpractice actions and
recognize loss of chance as a compensable
interest.
These states are:
Arizona: Thompson v. Sun City Community Hospital, 688 P.2d 605 (Ariz.
1984).
Colorado: Boyria v. Pash, 960 P.2d
123 (Colo. 1998); Sharp v. Kaiser Founda-

4. Haynes v. Calcasieu v. Med. Transp. Inc., 702


So.2d 1024 (La.App. 1997).

tion Health Plan, 710 P.2d 1156 (Colo.


App, 1985).
Connecticut: Borkowski v. Sachetti,
682 A.2d 1095 (Conn.App. 1986); Poulin
v, Yasner, 781 A.2d 422 (Conn.App.
2001).
Georgia: Richmond County Hospital
Authority v. Dickerson, 356 S.E.2d 548
(Ga.App. 1987); Dowling v. Lopez, 440
S.E.2d 205 (Ga. 1993).
Hawaii: McBride v. United States,
462 F.2d 72 (9th Cir. 1972).
Illinois: Holton v. Memorial Hospital, 679 N.E.2d 1202 (Ill. 1997); Reardon
v. Bonutti, 737 N.E.2d 309 (Ill.App. 2000).
Indiana: Cahoon v. Glessie, 734
N.E.2d 535 (Ind. 2000), vacating Cahoon
v. Cummings, 715 N.E.2d 1 (Ind.App.
2000); Mayhue v. Sparkman, 653 N.E.2d
1384 (Ind. 1995); Alexander v. Scheid, 726
N.E.2d 272 (Ind. 2000).
Iowa: Wendland v. Sparks, 574
N.W.2d 327 (Iowa 1998); Deburkarte v.
Louran, 393 N.W.2d 131 (Iowa 1986);
Sanders v. Ghristt, 421 N.W.2d 520 (Iowa
1988).
Kansas: Roberson v. Counselman,
686 P.2d 149 (Kan. 1984); Delaney v.
Cade, 873 P.2d 175 (Kan. 1004); Pipe v.
Hamilton, 56 P.3d 823 (Kan. 2002).
Louisiana: Hastings v. Baton Rouge
General Hospital, 498 So.2d 713 (La.
1986); Smith v. State, 676 So.2d 543 (La.
1996).
Missouri: Soper v. Bopp, 990 S.W.2d
147 (Mo.App. 1999); Wollen v. DePaul
Health Center, 828 S.W.2d 681 (Mo.
1992); Holloway v. Cameron County, 18
S.W.3d 417 (Mo.App. 2000).
Montana: Aasheim v. Humberger,
695 P.2d 824 (Mont. 1985).
Nevada: Perez v. Las Vegas Medical
Center, 805 P.2d 589 (Nev. 1991).
New Hampshire: Lord v. Lovett, 770
A.2d 1103 (N.H. 2001).
New Jersey: Scalfidi v. Seiler, 574
A.2d 398 (N.J. 1990).
New Mexico: Alberts v. Schultz, 975
P.2d 1279 N.M. 1999).
New York: Kallenberg v. Beth Israel
Hospital, 357 N.Y.S.2d 508 (App.Div. 1st
Dept 1974; but see Mortenson v. Memo-

Loss of Chance in Medical Malpractice

rial Hospital, 483 N.Y.S.2d 264 (App.Div.


1st Dept 1984); Birbeck v. Central Brooklyn Medical Group, 2001 N.Y. Slip Op.
401330 (N.Y. 2001).
Ohio: Roberts v. Ohio Permanente
Medical Group, 668 N.E.2d 480 (Ohio
1996); McMullen v. Ohio State University
Hospitals, 725 N.E.2d 1117, 1121 (Ohio
2002); but see Liotta v. Rainey, 2000 Ohio
App. Lexis 5475 (Ohio App. 2000).
Oklahoma: McKellips v. Saint
Francis Hospital, 741 P.2d 457 (Okla.
1987).
Pennsylvania: Hamil v. Bashline,
392 A.2d 1280 (Pa. 1978).
Puerto Rico: Morales v. United
States, 642 F.Supp. 269 (D. P.R. 1986).
Vermont: Short v. United States, 908
F.Supp.2d 227 (D. Vy. 1998); Lockwood v.
Lord, 657 A.2d 555 (Vt. 1994);
Washington: Herkovits v. Group
Health Co-operative of Puget Sound, 664
P.2d 474 (Wash. 1981);
West Virginia: Thornton v. CAMC,
305 S.E.2d 316 (W.Va. 1983); and
Wisconsin: Ehlinger v. Sipes, 454
N.W.2d 754 (Wis. 1990); Fischer v.
Ganju, 485 N.W.2d 10 (1992).

B. Rationales for Lost Chance


The loss of chance jurisdictions have
adopted one of four approaches: (1) increased risk of harm, (2) substantial possibility, (3) a combination or slight variant of
the increased risk/substantial possibility
approaches, and (4) pure chance or separate injury.
1. Increased Risk of Harm
Under the increased risk of harm approach, a prima facie case of liability is
established where expert medical testimony is presented to the effect that the
physicians conduct did, with a reasonable
degree of medical certainty, increase the
risk that the harm sustained by plaintiff
would occur.5 The degree of certitude normally required as to causation is relaxed
as any decrease in the chance of survival or
better outcome can constitute an increased
risk of harm even if the plaintiffs chances

Page 303

of survival or better outcome were less


than 50 percent before the negligence.
2. Substantial Possibility
A similar approach adopted by other
states allows recovery where the negligence is found to have resulted in a
substantial loss of a patients chances of
survival. Once evidence of a loss of a substantial possibility of survival or better outcome is presented, it is up to the jury to
determine causation. The Washington Supreme Court was an early proponent of this
approach. In Herkovits,6 a physician was
alleged to have failed to diagnose lung cancer. It was claimed that there had been a
six- month delay in diagnosis, which
caused the decedent to lose a 14 percent
chance of surviving five years. The court
held that the loss of a 14 percent chance
was substantial and therefore compensable.
3. Combination
Some states have adopted variant standards incorporating a combination of the
increased risk of harm and the substantial
possibility approaches or utilizing slightly
different terminology. For instance, under
Fischer,7 Wisconsin requires a showing
that (1) the omitted treatment was intended
to prevent the very harm that resulted; (2)
the plaintiff would have submitted to the
omitted treatment; and (3) it is more probable than not that the treatment would have
lessened or avoided the injury. It is then for
the trier of fact to determine whether the
alleged negligence was a substantial factor
in causing the plaintiffs harm.
Illinoiss loss of chance rule requires
that the defendants failure to render a
timely diagnosis more probable than not
compromised the effectiveness of treatment received or increased the risk of harm
to the plaintiff.8
5. Beswick v. City of Philadelphia, 185 F.Supp.2d
418, 433 (E.D. Pa. 2001).
6. 664 P.2d 474 (Wash. 1981).
7. 485 N.W.2d 754 (Wis. 1990).
8. Scardina v. Nam, 775 N.E.2d 16 (Ill.App.
2002); Reardon v. Borutti, 737 N.E.2d 309 (Ill.App.
2000).

Page 304

4. Pure Chance
The pure chance or separate injury approach claims not to relax the causation requirement but instead focuses in on the alleged injury. Under this approach, a
plaintiff is required to show, to a reasonable degree of medical certainty or probability, that the physicians failure to diagnose the underlying illness reduced a
chance of survival. However, the compensable loss is the loss of chance, not the ultimate outcome. As with the other approaches, courts have not quantified what
specific percentages constitute a substantial or meaningful loss of opportunity. Indeed, some states, like Louisiana, hold that
any loss of chance is compensable and it
need not be either substantial or even
reasonable. 9
New Hampshire is a recent convert to
the pure chance approach. In Lord,10 the
New Hampshire Supreme Court addressed
the propriety of a claim brought by a plaintiff who suffered a broken neck and who
alleged that the defendant physician had
misdiagnosed and mistreated the spinal injury, causing a loss of chance or a better
recovery. According to the court, a plaintiff may recover for a loss of opportunity
injury in medical malpractice cases when
the defendants alleged negligence aggravates the plaintiffs preexisting injury that
it deprives the plaintiff of a substantially
better outcome. The court made clear that
the compensable wrong was not the entire
injury but the value of the lost opportunity.
C. Quantifying Damages
The jurisdictions that have adopted loss
of chance also differ over quantifying damages. A minority of them awards full damages or compensation for the ultimate
harm. The majority measure or limit
9. Hebert v. Parker, 796 So.2d 19 (La.App.
2001).
10. 770 A.2d 1103 (N.H. 2001).
11. See generally Lori R. Ellis, Loss of Chance as
Technique: Toeing the Line at Fifty Percent, 72 TEX.
L. REV. 369, 376-77 (1993) (discussing various
valuation methods).
12. Smith v. State Dept of Health & Hosp., 676
So.2d 543, 549 n.11 (La. 1996).

DEFENSE COUNSEL JOURNALJuly 2003

damages to the value of the loss of chance


alone. Even here, however, the courts differ in how this valuation is made. Some
multiply full damages by the patients
chance of survival at the time of misdiagnosis or by the difference in the chance at
the time of the alleged negligence versus
the chance at the time proper treatment and
actual diagnosis. Another variation takes
the number of years on which the survival
probability is based and divides it by the
individuals life expectancy and then takes
that percentage and multiplies it against the
full damages.11
Some courts leave the issue of damages
entirely to the jurys discretion. Louisiana
is the leading proponent of this view. Under this approach, the compensable harm
must be identified and separated from the
harm associated with the underlying injury,
but it is up to the jury to place a number on
that injury. According to the leading decision of the Louisiana Supreme Court, the
measure of damages for loss of chance includes:
Evidence of loss of support, loss of love,
and affection and other wrongful death damages is relevant, but not mathematically determinative, in loss of a chance of survival
cases, as is evidence of the percentage
chance of survival at the time of the malpractice. The plaintiff may also present evidence of, and argue, other factors to the jury,
such as that a ten percent chance of survival
may be more significant when reduced from
ten percent to zero that when reduced from
forty to thirty percent. The jury may also
consider such factors as that the victim, although not likely to survive, would have
lived longer but for the malpractice.12

In a recent Louisiana wrongful death decision, the Louisiana Court of Appeal


stated that specific percentages for loss of
chance need not be established in a case
involving loss of chance of survival. According to the court, such percentages, if
introduced as evidence, may be considered,
but it is for the fact finderjudge or jury
to focus on the chance of survival lost on
account of [tortious fault] as a distinct compensable injury and to value the lost chance
as a lump sum award based on all the evi-

Loss of Chance in Medical Malpractice


dence in the record, as is done for any other
item of general damages.13

D. Rejecting Loss of Chance


Sixteen American states so far have rejected the doctrine. The rejection of loss of
chance has occurred both judicially and
legislatively. Those states are:
Alabama: McAffee v. Family Center,
641 So.2d 265 (Ala. ;994);
Alaska: United States v. Crosby, 48
F.Supp.2d 924 (D. Alaska 1999);
Arkansas: Holt v. Wagner, 43 S.W.2d
128 (Ark. 2000); Finn v. Phillips, 2002
Ark.App. Lexis 522;
California: Dumas v. Cooney, 1
Cal.Rptr.2d 584 (Cal.App. 1991); Bromme
v. Pavitt, 7 Cal.Rptr.2d 608 (Cal.App.
1992);
Florida: Gooding v. University Hospital Building Inc., 445 So.2d 1015 (Fla.
1984); Swain v. Curry, 595 So.2d 168
(Fla.App. 1992);
Idaho: Manning v. Twin Falls Clinic
& Hospital Inc,, 830 P.2d 1185 (Idaho
1992).
Maryland: Fennell v. Southern
Maryland Hospital Center Inc., 580 A.2d
206 (Md. 1990); Chudson v. Rata, 548
A.2d 172 (Md. 1988);
Michigan: Falcon v. Memorial Hospital, 462 N.W.2d 44 (Mich. 1990);
Weymers v. Khera, 563 N.W.2d 647
(Mich. 1997); limited by statutory amendment eliminating recovery for loss of
chance in wrongful death actions (Michigan Compiled Laws, Section 00 2912(a)
(2000));
Minnesota: Fabio v. Belloma, 504
N.W.2d 758 (Mknn. 1993);
Mississippi: Ladner v. Campbell, 515
So.2d 882 (Miss. 1987); Clayton v. Thompson, 475 So.2d 430 (Miss. 1985);
South Carolina: Jones v. Owings,
456 S.E.2d 371 (S.C. 1995); Burroughs v.
Worsham, 574 S.E.2d 215 (S.C.App.
2002);
South Dakota: Jorgensen v. Vener,
616 N.W.2d 366 (S.D. 2000), further proceedings, 640 N.W.2d 485 (S.D. 2002), abrogated by South Dakota Codified Laws
Section 20-9-1;

Page 305

Tennessee: Kilpatrick v. Bryant, 868


S.W.2d 594 (Tenn. 1991);
Texas: Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397 (Tex. 1993);
Marvelli v. Alston, 100 S.W.3d 460
(Tex.App. 2003);
Utah: Andersen v. Brigham Young
University, 1996 U.S.App, Lexis 15543
(10th Cir. 1996); George v. LDS Hospital,
797 P.2d 1117 (Utah App. 1990); Seal v.
Gowars, 923 P.2d 1361 (Utah 1006); and
Virginia: Murray v. United States,
215 F.3d 460 (4th Cir. 2000); Irby v. Richmond Pediatric Assn, 16 Va.Cir. 383
(1995).
Recent judicial rejections of the loss of
chance have occurred in Alaska and Arkansas. In Crosby, the U.S. District Court
in Alaska undertook a thoughtful analysis
and concluded that adoption of the loss of
chance would disrupt the traditional and
statutory causation principles under Alaska
law. Such a far-reaching policy decision
should be for the states legislature, it
stated, pointing out that loss of chance was
particularly ill-suited to a state like Alaska,
where it is often necessary to deliver medical care in remote locations, reducing the
availability of potentially beneficial tests
and procedures.
In Holt,14 the Arkansas Supreme Court
was less forthright, holding only that the
claimant had not provided citation of authority or convincing argument and that it
would revisit the issue on proper argument.
Since Holt, an Arkansas intermediate appellate court has skirted the issue in an action against a physician for negligence in
the alleged delay in the delivery of twins.
The court held that even if loss of chance
were recognized in Arkansas, the plaintiffs expert had failed to opine what
amount of chance was lost as a result of the
alleged negligence. It stated:

A jury cannot be expected to know, without resort to speculation and conjecture,


what chance of survival a premature baby in
this situation would have had to begin with,
what chance she lost due to [the defen13. Johnson v. Foti, 2003 La.App. Lexis 1102.
14. 43 S.W.2d 128 (Ark. 2000).

Page 306
dants] conduct, and whether that chance
was worthy of recompense. The absence of
helpful expert testimony is especially glaring in a case such as this one where it is not
known what caused the babys death.15

Both Michigan and South Dakota have


rejected loss of chance through legislative
enactment after each states supreme court
had adopted the doctrine. Michigans statutory bar to the doctrine was adopted in
1999, while South Dakotas was enacted in
2002. Both statutory enactments are direct
and unequivocal in their rejection of the
doctrine.16
New Hampshire recently joined the fray.
Following the recognition of loss of chance
by the New Hampshire Supreme Court in
Lord v. Lovett, two competing bills were
introduced in the states legislature. One
seeks to abrogate the doctrine, while the
other seeks to have the doctrine codified
statutorily.17
E. The Undecided/Conflicted
Eight statesDelaware, Kentucky,
Maine, Nebraska, North Dakota, North
Carolina, Oregon, Massachusetts, Rhode Island and Wyomingare either conflicted or
have yet to address the issue specifically.
In Massachusetts, the states highest
court has recognized the substantial chance
approach for purposes of medical malpractice offers of proof for pretrial tribunal
medical malpractice screenings, but it has
left the issue unsolved for purposes of trial,
although at least one earlier intermediary
court has applied the doctrine. In Bradford
v. Baystate Medical Center,18 five of the
justices of Massachusetts high court ques-

15. Finn v. Phillips, 2002 Ark App. LEXIS 522,


at *10.
16. For instance, South Dakotas statutory provision provides:
20-9-1.1. Loss of Chance doctrine abrogated
The Legislature finds that in those actions
founded upon alleged want of ordinary care or skill
the conduct of the responsible party must be shown
to have been the proximate cause of the injury complained of. The Legislature also finds that the application of the so called loss of chance doctrine in such
cases improperly alters or eliminates the requirement

DEFENSE COUNSEL JOURNALJuly 2003

tioned a rule of law that would totally exonerate a negligent physician from tort liability when the patient had a fair, but less
then even chance of survival if the physician had not been negligent, while two of
the justices found any adoption of loss of
chance would constitute a radical departure from traditional tort law and leave to
speculation the question of whether the alleged negligence resulted in injury or
death.
Delaware is another apparently conflicted jurisdiction. In 1988 in Shively v.
Klein,19 the Delaware Supreme Court labeled loss of chance as innovative but an
issue that should be addressed by the legislature. But six years later in United States
v. Cumberbatch,20 the court was faced with
deciding whether to recognize loss of
chance in a wrongful death action. The decedent died of pneumococcal meningitis,
and although he had less than a 50 percent
chance of surviving, his chances of survival would have been greater absent the
alleged negligence. The court rejected the
loss of chance doctrine on the ground that
it was precluded by Delawares wrongful
death statute, finding that since the statute
allowed actions only for the death of a relative and where the negligence causes the
death of another, the statute did not allow
for any judicial relaxation of the causation
standard.
One year later the same court, in an alleged delay in the diagnosis of testicular
cancer case, held that recovery could be
had for any injury or damage resulting
from negligence that increased the risk of
harmin this case the higher risk of death
from testicular cancer.21
of proximate causation. Therefore, the rule in
Jorgenson v. Vener, 2000 SD 87, 616 N.W. 2d, 366
(2000) is hereby abrogated.
17. Michael Gross, NH Trial Lawyers Want to
Hike Cost of Health Care Dramatically, UNION
LEADER (Manchester), February 11, 2003, at A9
(discussing H.B. 290 and S.B. 119 in New Hampshire legislature).
18. 613 N.E.2d 82 (Mass. 1993).
19. 551 A.2d 41 (Del. 1988).
20. 647 A. 2d 1098 (Del. 1994).
21. United States v. Anderson, 669 A.2d 73 (Del.
1995).

Loss of Chance in Medical Malpractice

Most recently, in Edwards v. Family


Practice Associates,22 the Delaware Superior Court held that while loss of chance is
not applicable in wrongful death actions, it
is a viable theory of recovery in survivorship actions where a demonstrable harm resulted. In Edwards, it was alleged that the
defendant physician failed to timely diagnose stomach cancer. Although the decedent had less than a 50 percent chance of
survival prior to the alleged negligence, he
could proceed with a loss of survivorship
claim stemming from the weight loss,
wasting, improved healing ability and recuperation time he would have had absent the
alleged negligence.
RECENT DEVELOPMENTS
A. Greater than Even Chance
Courts that have adopted loss of chance
generally have refused to apply it in cases
where the claimant has a better even
chance of survival prior to the negligence.
In McDermott v. Tweel,23 the Ohio Court of
Appeals held that loss of chance is inapplicable to an untimely failure to diagnose
cancer, even though there was expert testimony presented that the two defendant
physicians had caused a 5 percent and 25
percent reduction, respectively, in chance
of recovery. The court stated that in betterthan-even cases the traditional rule as to
causation applies and that some evidence
that the alleged negligence probably
caused the decedents death is required.
B. Wrongful Death / Survival
The loss of chance doctrine is seemingly
inconsistent with wrongful death statutes in
that these statutes impose liability only for
death. These statutes usually provide for a
cause of action for the benefit of statutory
beneficiaries. Loss of chance is not consistent with this basic structure as the claim is
not for death but for the diminishment in
the chances of survival. Indeed, most
courts that have considered the issue have
held that loss of chance is not compatible
with wrongful death, absent legislative
amendment, and must be asserted as an independent survivorship action.24

Page 307

Nonetheless, some courts have held that


loss of chance is consistent with wrongful
death. In the Cahoon case, for example, the
Indiana Supreme Court held that its recognition of loss of chance through the increased risk of harm approach was entirely
consistent with the states wrongful death
statute, which, the court stated, did not
spell out what is meant by causation and
that the increased risk of harm standard
was an appropriate causation standard.
The court adopted the holding of the intermediate appellate court: The intent of the
wrongful death statute was to allow an action to be brought by the decedents personal representative against a defendant
who may be held legally liable for the
death, regardless of the mechanism of liability. 25
Similarly, in Estate of Alfano v. Montowese Health and Rehabilitation,26 a trial
court in Connecticut held that loss of
chance must be brought under the states
wrongful death statute as an alternative
theory of recovery and not as a separate
common law cause of action.
C. Substantial Loss of Chance
While many of the jurisdictions that
have adopted loss of chance state that the
lost chance must be substantial to be actionable, virtually any stated loss has been
found to be sufficient to present a jury issue. The Supreme Court of Kansas addressed that issue in Pipe,27 in which a surgeon was sued for an alleged failure to
provide further treatment to a patient who
was discovered to have a gangrenous
bowel during surgery. The physician advised that the decedents bowel was dead
and that she would live only six to 12
hours. It was alleged that the physician deviated from the accepted standard of care
by not performing more tests to determine
22. 798 A. 2d 1059 (Del.Super. 2002).
23. 786 N.E.2d 67 (Ohio App. 2003).
24. See, e.g., Dowling v. Lopez, 440 S.E.2d 205,
208 (Ga.App. 1993)
25. 734 N.E.2d at 539.
26. 2003 Conn.Super. Lexis 975 (unreported
memorandum).
27. 56 P.3d 823 (Kan. 2002).

Page 308

if the condition was treatable.


Although the decedents chances of survival were stated to be 5 to 10 percent at
best, the court held this loss to be substantial as a matter of law. With very little
analysis, it summarily found that a 10 percent chance of survival is more than a trifling matter and is something that Kansas
public policy supports as being recognized
as substantial.
D. Informed Consent
The Jorgensen case in South Dakota,
which precipitated a state statute abrogating the loss of chance doctrine, exemplifies
the extent to which courts have gone in
adopting and applying loss of chance doctrine. David Jorgensen, while visiting a
relatives home outside his home state, suffered a broken leg after jumping about
seven feet from a deck to a concrete sidewalk. The impact shattered his lower leg
and ankle, requiring the placement of pins
and external fixation. When he returned
home and was being treated by Dr.
Michael Vener, an infection developed.
Jorgensen went to the Mayo Clinic and
was advised and given the option of amputation or bone and skin grafts that would
require two years of treatment and have a
60 percent chance of success. He made the
informed decision to amputate.
Jorgensen and his wife subsequently
sued Vener for failure to diagnose the infection and to refer to an infectious disease
specialist, which was alleged to have decreased the chance of saving his leg. The
South Dakota Supreme Court reversed the
entry of summary judgment for the physician and expressly found that the loss of
chance doctrine should be an actionable injury.28
On remand to the trial court, summary
judgment was again entered for the physician in response to the plaintiffs deposition testimony that, given a 10 to 15 per28. 616 N.W 2d 366 (S.D. 2000), previously reported at 613 N.W.2d 50 and withdrawn from
printed volume.
29. 640 N.W.2d at 491.
30. 960 P.2d 123 (Colo. 1998).

DEFENSE COUNSEL JOURNALJuly 2003

cent increase in the chance to save his leg


if properly diagnosed, he would have chose
amputation. The trial court concluded that
the plaintiff had abandoned any chance
by such an election barring any loss of
chance claim as a matter of law.
On a subsequent appeal to the South Dakota Supreme Court, summary judgment
was reversed again, and the case was remanded for trial. The court summarily held
that the plaintiff should not be deprived of
the opportunity to prove the value of such
damages simply because of an after-thefact statement.
The ruling precipitated two dissents, a
blistering one asserting that the decision effectively allowed a claimant both to disclaim a medical remedy and to sue for having been denied it:
Thus, a patients own decisions about
courses of treatment become wholly irrelevant. The doctor must pay for not giving a
patient a choice the patient would never
have chosen. The expansion of liability is
breathtaking. Medical malpractice law now
becomes a Pickwickian parlor game. There
will be compensation for loss, even if only
illusory, a product of statistics, conjured up
and displayed in so many pixels. All a jury
needs to do is count them, and, of course,
add dollar signs.29

E. Literal Chance, Future and/or


Unmaterialized Harm
A further difficulty with loss of chance
is that courts have allowed recovery for the
loss of future, yet unmaterialized, harm, as
the Colorado Supreme Court held in
Boryla v. Pash.30 There, the plaintiff asserted a claim for damages for a threemonth delay in diagnosing breast cancer.
She underwent a subsequent and prompt
radical mastectomy and surgical removal
of lymph nodes. Both at the time of trial in
1994 and the appellate ruling in 1998, the
plaintiff had not had a recurrence of cancer
since the 1990 operation. The court affirmed the $220,000 award. The expert testimony supporting the claim was that the
delay increased the chances of metastasis
or spread and curability because every
day counts.

Loss of Chance in Medical Malpractice

Indianas Supreme Court has reached


a similar conclusion. In Alexander v.
Scheid,31 a plaintiff suffering from cancer
claimed that his chances of long-term survival were decreased by the physicians
negligence. Although the cancer was in remission at the time of trial and there was
no physical injury, the court concluded that
the plaintiff still was entitled to recovery.
The issue was touched on in a slightly
different context by the Ohio Court of Appeals in Dobran v. Franciscan Medical
Center.32 A malignant mole was found, and
the claimant opted for a sentinel lymph
node biopsy. The node specimen became
unfrozen by the time it reached the lab and
could not be tested. The court reversed the
entry of summary judgment, although there
was no evidence of metastasis or other
physical harm, on the grounds that the loss
of the specimen destroyed a opportunity to
determine whether cancer had spread.
Although the plaintiff had undergone
successful treatment, the court held that
metastatic cancer presents the risk of recurrence and the inability to screen the specimen resulted in a loss of an earlier detection of any recurrence. According to the
court, that opportunity had value to the
plaintiff because the earlier the treatment
the better chances of a successful outcome. The only testimony relating to injury was that the plaintiffs that he no
longer enjoyed doing things that he liked to
do in the past, such as golf and traveling,
and that he was bothered by the chance the
cancer could return and that he would feel
better if he knew the percentage of survival.
F. Efforts at Expansion
Jurisdictions that have adopted loss of
chance often are times faced with efforts to
expand the already expansive theory of recovery even further. Such an effort was
made in New Jersey in Reynolds v.
Gonzalez.33 The plaintiff suffered a serious
fracture of his left leg and claimed that
subsequent nerve injury and paralysis resulted from the defendant physicians failure to diagnose and treat compartment

Page 309

syndrome. The New Jersey Supreme


Court reaffirmed the states recognition of
the increased risk-substantial factor standard where it is claimed that a physicians
negligence worsened a pre-existing condition. Under this view, the plaintiff must
demonstrate to a reasonable degree of
medical probability that negligent treatment increased the risk of harm posed by a
pre-existing condition and that the increased risk of harm was a substantial factor in causing the ultimate harm. The jury
then determines the appropriate apportionment of damages.
In this case, however, the court rejected
the effort to expand the doctrine. The
plaintiff argued that the substantial factor
element was not necessary in that a jury
should be allowed to apportion damages
once it determines that a defendants negligence has increased the risk of harm posed
by the pre-existing condition. The court
recognized that to accept such a formulation would altogether dispense with the
need for proof of any casual connection between the alleged physicians negligence
and the resultant harm.
G. Statute of Limitations
Failure to diagnose claims involving loss
of chance can raise interesting limitation
questions. The issue centers on when the
applicable limitations accruesat the time
of the loss of chance or the time of the
injury. If the injury is the loss of chance,
then the limitations period will begin to run
earlier then if the manifestation of harm is
the accruing event.
In the Delaware case, Edwards v. Family
Practice Associates Inc., 34 a wrongful
death action, the plaintiff-executrix asserted a failure to diagnose the decedents
stomach cancer in a timely fashion. It was
claimed that the decedent was treated between May 1995 and June 1996, that the
cancer was present in 1995, that the decedent had a 40 percent chance of survival at
31.
32.
33.
34.

726 N.E. 2d 272 (Ind. 2000).


777 N.E.2d 907 (Ohio App. 2002).
798 A.2d 67 (N.J. 2002).
798 A. 2d 1059 (Del.Super. 2002).

Page 310

that time, and that the cancer was not diagnosed until July 1996 when it had progressed to an advanced stage at which the
chance of a five-year survival was less than
5 percent.
It was argued that the applicable twoyear statute of limitations barred the action
as the alleged breaches of the standard of
care occurred in 1995 when the decedent
had a 40 percent chance of survival and
that, according to the decedent, he had a
less than 5 percent chance of survival between January and March, 1996. Accordingly, it was argued that even though there
were allegations of continuing negligence
in 1996, that negligence was not the proximate cause of any loss of chance of survival, thus time-barring the action.
The Delaware Superior Court rejected
the argument, finding that the record was
not clear and that further facts needed to be
developed. It acknowledged that the jury
would have to determine whether there
were any breaches in 1996 and whether
any such breach, as opposed to any
breaches in 1995, caused harm. If not, the
case would be time barred.
H. Pleadings
In Robertson v. University Hospitals of
Cleveland,35 the Ohio Court of Appeals upheld the trial courts denial of a request to
amend a complaint to add a loss of chance
claim. The court noted that trial was scheduled to take place in four months, and that
if the new theory was added more time
would be needed to allow for additional
discovery. The court also noted that the
theory was not newly discovered.
I. Experts
While expert testimony is crucial to all
medical malpractice claims, it is especially
so in loss of chance claims. As resort to
loss of chance as a theory of recovery continues to grow, issues of the reliability and
35. 2002 Ohio App. Lexis 6366.
36. 816 So.2d 1113, 1118 (Fla.App. 2001).
37. 2002 Mass.App. Lexis 1143 (unpublished
memorandum).
38. 99 S.W.2d 669 (Tex.App. 2003).

DEFENSE COUNSEL JOURNALJuly 2003

relevancy of supportive expert testimony


will increasingly become a major battlefield for defense counsel.
In Holy Cross Hospital Inc. v. Marrone,36 the Florida Court of Appeal held
that an experts opinion that the plaintiffs
cancer progressed from one stage to another due to a failure to diagnose must be
subject to judicial scrutiny and screening
for reliability before allowed before a jury.
The court recognized that while staging assists in identifying treatment options, it is
not intended to determine why the cancer
spread.
An intermediate appellate court in Massachusetts also held an expert proffer insufficient as a matter of law in Tripp v.
Cranberry Point Rehabilitation & Skilled
Care Center.37 Under Massachusetts practice, all medical malpractice claims must
be screened by a tribunal and an offer of
proof containing an expert letter must be
submitted. The tribunal applies the directed
verdict standard in determining whether
the offer of proof is sufficient to allow the
case to proceed to discovery.
In Tripp, the court held that an expert
proffer as to an alleged failure to diagnose
colon cancer was insufficient to meet the
directed verdict standard for purposes of
the tribunal. According to the claimants
expert letter, the negligence of the defendant did not allow an earlier diagnosis of
[the decedents] colon cancer, possibly at a
pre-cancerous stage which would have offered a better prognosis for quality of life
and long-term survival. The patients ultimate demise was the direct and proximate
result of the negligence of these defendants. The court held the letter insufficient on the issue of causation as there was
insufficient evidence that it was more
probable than not the decedent would have
lived longer or suffered less . . . . [w]e
think it is pure speculation to suggest, as
[the expert] did, that an earlier diagnosis
possibly at a pre-cancerous stage would
have offered a better prognosis.
In Hodgkins v. Bryant,38 the Texas Court
of Appeals rejected an experts affidavit
offered in opposition to a motion for summary judgment. In the affidavit, the expert

Loss of Chance in Medical Malpractice

physician opined that the chance of survival at the time of the alleged misdiagnosis was 51 percent. The court found the
opinion inadmissible as no basis was provided. The court noted that no studies,
methodology or testing was offered to support the opinion and that the affidavit contained no testimony as to what treatment
would have been provided and what rate of
success existed with such treatment.
RUMINATIONS FOR THE DEFENSE
Claims based on loss of chance require
vigilance by defense counsel. Even within
a jurisdiction that has adopted the doctrine,
defense counsel need to be deliberate in
seeking to limit and control the doctrine,
whether through properly focused instructions, in limine motions, evidence, experts
or arguments to the jury or fact-finder.
Some random thoughts for the defense are
set forth below.
While the policy considerations supporting loss of chance are certainly not insubstantial, the countervailing interests are
no less compelling. It is unfounded to assume that absent such a theory of recovery
health care providers will not provide
proper treatment to critically ill patients or
those patients whose prognosis is poor.
There is no support for such a claim. Moreover, such an assertion is particularly unsupportable in many failure to diagnose
cases, as the physician does not realize at
the time of the purported negligence that
the patient is ill.
No matter what approach is used for
loss of chance, the doctrine fundamentally
alters causation, the burden of proof or
damages, or all three.39 Similarly, allowing
damages in an amount equal to the injury
resulting directly from the loss of chance
and not the ultimate condition is problematic as the loss of chance itself is that of
avoiding the very ultimate condition which
is purportedly not in issue.
The argument that negligent physicians
benefit if loss of chance is not adopted
rings hollow, as it is black-letter law that

Page 311

negligent conduct is only tortious if it results in compensable injury; absent such an


injury, the physician has not avoided anything. Allowing a claimant to recover even
a reduced amount of damages from a physician equates to holding physicians liable
despite the greater likelihood that the
plaintiffs ultimate condition would have
resulted absent any negligence of the defendant physician.
So no matter what approach is adopted,
loss of chance not only lowers the burden
of proof as to causation but by allowing
recovery in those instances where the lost
chance is 50 percent or less, it effectively
shifts the burden of proof regarding causation to the defendant physician.
To allow the measure of proof in
medical malpractice actions to be diluted
by wholesale acceptance and uncontrolled
use of loss of chance is to undercut the
truth-seeking function of the courts. The
practice of medicine is not an exact science. As a result of loss of chance,
healthcare providers could find themselves defending cases simply because another cause of action could possibly bring a
better result.40 Given the continual pace of
medical technological innovation, the
possibilities of cures and better results
will correspondingly expand. For instance,
every mammogram is a potential plaintiff
despite compelling evidence questioning
whether the test truly results in a better outcome in many cases.
The preponderance of the evidence
standard already is a lenient standard of
proof and represents a minimum level of
certainty. When placed together with loss
of chance, the truth- seeking function of
the courts is compromised. Indeed, where,
for example, a claim is made for a 25 percent loss of chance, the fact-finder is asked
whether it was more probable than not
(greater than 50 percent) that the physician
39. See generally Marvin Devlin, Gambling with
the Future: Defense of the Loss of Chance, MEDLAW
UPDATE (Spring 2000).
40. Gooding, 445 So.2d at 1019.

Page 312

caused the 25 percent loss of chance.


The Texas Supreme Court provides a
compelling response to loss of chance proponents:
Imperfect as it may be, our legal system
attempts to ascertain facts to arrive at the
truth. To protect the integrity of that goal,
there must be some degree of certainty regarding causation before a jury may determine as fact that a . . . To dispense with this
requirement is to abandon the truth-seeking
function of the law. The more likely than not
standard is thus not some arbitrary, irrational
benchmark for cutting off malpractice recoveries, but rather a fundamental prerequisite of an ordered system of justice.41

Loss of chance also runs directly


counter to efforts of most states to control
and stem rising medical costs and insurance premiums. Loss of chance effectively
creates a new category of damages and expands liability. It may well encourage a
proliferation of defensive medicine, an escalation of medical costs and an unwarranted expansion of liability exposure
with troubling implications.42
The observation of the Maryland Supreme Court is notable. In rejecting loss of
chance, the court stated that from a purely
statistical viewpoint, loss of chance produces more errors than traditional causation principles.43
The court used the following example:
Assume there are 99 cancer patients. Each
has a 33 percent chance of survival; each
was subject to a failure of diagnosis; as a
result, they have died. Under traditional
principles of causation, none of the patients
would be able to recover because it was
more probable than not that underlying
condition caused their deaths. Statistically,
however, had all 99 patients received
proper treatment, 33 would have survived
and 66 would have died as a result of the
41. Kramer, 858 S.W.2d at 405.
42. Dumas, 1 Cal.Rptr.2d at 592, citing Gooding,
445 So.2d at 1019-20.
43. Fennell, 580 A.2d at 208-213. See Stephen F.
Brennwald, Proving Causation in Loss of a Chance:
A Proportional Approach, 34 CATH. U. L. REV. 747,
779 n.254 (1985).

DEFENSE COUNSEL JOURNALJuly 2003

underlying condition. So traditional causation principles would have resulted in 33


errors by denying recovery to all 99 patients.
On the other hand, applying the loss of
chance rule allowing for a discounted recovery, there would be errors in all 99
cases. That is, with proper care, 33 of the
99 patients would have recovered, but each
would only receive one-third of the appropriate recovery. The remaining 66 patients
who would have died as a result of the preexisting condition in any event then would
receive a windfall by receiving a one-third
recovery.
The increased risk of harm approach
to loss of chance appears to be a misapplication of established law. The increased
risk of harm concept provides that if a one
undertakes to care for a person in need of
protection, where the failure to render care
would increase the risk of harm, then liability can be imposed. Seemingly lost in
the jurisdictions that have adopted this approach to loss of chance is the fact that the
increased risk of harm speaks to the imposition of a duty of care, not causation or
damages. It was not intended to alter the
traditional rule of damages or causation in
anyway. Where a person acts and is in such
a relationship to the claimant as to pose an
increased risk of harm, a duty of care is
imposed. The duty must still be breached
and that breach must proximately cause an
actionable harm.
Courts that have adopted loss of
chance accord little or no significance to
the fact that courts have refused overwhelmingly to apply it in other contexts.
The doctrine is rejected because of concerns of unnecessary expansion of liability
and of verdicts based on speculation and
conjecture. There is no principled justification for rejecting loss of chance in nonmedical malpractice situations and yet allow its wholesale application in medical
malpractice. To do so is to hold physicians
responsible under a very different standard
of liability from any other professional.
The proper and viable concerns of conjec-

Loss of Chance in Medical Malpractice

ture are equally applicable and compelling


in the medical malpractice context.
If loss of chance is to be adopted, an
argument arises as to whether physicians
should be allowed to use the same concept
to reduce damages. If a patient had a 49
percent chance of survival that was lost
though misdiagnosis and therefore is entitled to recover 49 percent of the value of
his or her life under the pure chance or
proportional damage theory, then a patient
who had a 51 percent chance of cure that
was lost through negligence perhaps
should be limited to 51 percent of the value
of the life lost. Under existing tort concepts, claimants are entitled to recover all
of their damages even when a physician is
only 51 percent negligent. If the loss of
chance is viewed as the compensable harm,
then there would appear to be no logical
reason not to apply it across the board.44
Central to any medical malpractice
action or defense is the need for competent
expert testimony and reliable proof. In loss
of chance actions, this is especially true
owing to the dynamic at work. The factfinder is forced to address the degree to
which the underlying disease (such as cancer) advanced between the time of the
defendants treatment and the subsequent
diagnosis, and the extent to which earlier
diagnosis and treatment would have altered
the prognosis.
This is an inherent uncertainty. Moreover, claimants in such cases are seeking to
walk a fine line in that they are asserting
that the underlying condition was sufficiently advanced and apparent that it
should have been diagnosed, while at the
same time asserting that the cancer was not
so far along so as to prevent a timely diagnosis that would have significantly approved the prognosis. Within this dynamic,
an expert opinion is proffered that there
has been a reduction in the likelihood of
cure or survival because of the alleged negligence. It is the basis and quality of this
expert opinion on which such a claim will
rise or fall, and this requires defense counsel to scrutinize closely and challenge loss

Page 313

of chance opinions.
Claimants routinely rely on survivability statistics to support loss of chance
claims. These statistics for cancer are measured by fixed sets of time, such as five or
ten years, but at no other time. If, for example, a plaintiff in a failure to diagnose
action claims a loss of a 30 percent chance
of surviving for five years, but has lived
for three years without a recurrence, the
survivability statistics are no longer applicable to this claimant. The loss of any
chance greatly diminishes each year that
the patient survives, and clinical studies do
not usually keep account of this development. More fundamentally, statistics alone
cannot accurately predict what will happen
to a particular patient, because no two patients are alike.
There also are a number of biases to
consider, including lead time bias or the
time advantage in diagnosis offered by
screening over the natural course of the
disease, which can skew survivability
statistics.45 False negatives must be considered as well. If a certain screening technique has a false negative rate of 10 percent, it should reduce the loss of chance.
Similarly, any proffer of statistics is truly
relevant only if the pool or registry on
which it is based is applicable to a particular claimant. This includes such things as
age, general health and treatment. A study
involving no treatment or different treatment from that undergone by the claimant
may well not be probative of the chances
of survival for the claimant.
The use and reliance on staging can
be equally misleading. The assertion that a
claimant progressed from a Stage I to a
44. See generally Jonathan P. Kieffer, The Case
for Across-the-Board Application of the Loss of
Chance Doctrine, 64 DEF. COUNS. J. 568 (1997);
King, Reformulation, supra note 1, at 556-57.
45. King, Reformulation, supra note 1, at 550-51.
See BC Cancer Agency, Cancer Management
GuidelinesScreening for Cancer, available at http:/
/www.bccancer.bc.ca/HPI/CancerManagement
Guidelines/default.htm (visited June 3, 2003).

Page 314

Stage III or IV between the misdiagnosis


and diagnosis, for instance, has superficial
appeal, but staging was never meant to be a
litigation tool. It is intended for medical
treatment decisions. Staging does not identify when the cancer developed, when it
metastasized, whether it was invasive or
aggressive or whether an earlier diagnosis
would have altered the outcome. In sum, a
progression from one stage to another does
not necessarily correlate to loss of survivability.
Defense counsel must ensure that the
evidence proffered in support of loss of
chance claims is both reliable and relevant.
The expert must be qualified and appropriate to render an opinion, and the opinion
must be based on relevant and reliable information applicable to the particular
plaintiff. A claimants expert should not be
allowed to opine that the plaintiff lost a
substantial chance of cure or survival without specific reference to the specific methodology, basis and reliability of this opinion.
Defense counsel should oppose proffers
based solely on statistics, and they should
require, at a minimum, that the experts
methodology be reasonably supported by
established studies, research and peer review. The source of the statistics must be
identified and explored, and defense counsel must ensure that they relate to the particular plaintiff. If not, the evidence must
be excluded.
Defense counsel must seek to control
and focus the issue of damages. At a minimum, they must ensure that recoverable
damages are related only to those palpable
harms resulting from the loss of chance,
not the underlying condition. What is rel46. F.J.C. Roe, Cancer as a Disease of the Whole
Organism, BIOLOGY OF CANCER (1996).
47. D. Plotkin & F. Blankenberg, Breast CancerBiology and Malpractice, 14 AM. J. CLIN.
ONCOL. 254, 256 (1991).

DEFENSE COUNSEL JOURNALJuly 2003

evant is not the loss of chance but any


resulting actual harm unrelated to the ultimate harm stemming from the underlying
condition, such as additional surgery,
medical costs and expenses.
In failure to diagnose actions, defense
counsel must give careful thought to how
to address the common assertion that earlier treatment or diagnosis would have led
to a better outcome. This is not an easy
task, for in many instances it is generally
true. However, this premise is not universally true. There is simply substantial authority urging caution in unquestioningly
accepting this principle. In appropriate
cases, jurors must be taught and disabused
of the notion that earlier diagnosis necessary equates to better outcome. In many
instances, the clinician even if he diagnoses cancer at the earliest possible stage,
is dealing only with the late stages of disease process.46
As one commentator noted:
The scientifically informed but ever hopeful public greets the purported breakthroughs [in cancer research] with enthusiasm. When treatment failure occurs
following diagnosis which could have occurred earlier, there is a strong tendency to
conclude that disability and/or death ensued
because of the doctors negligence. Until we
correct the unduly high expectations of our
diagnosis and therapeutic capabilities in this
field, all of us will suffer the social consequences.47

CONCLUSION
The growing acceptance of loss of
chance has and will continue to pose difficult problems for the defense of medical
malpractice claims. The doctrine raises
both significant policy concerns as to the
proper scope of a physicians liability, as
well as practical and strategic hurdles for
defense counsel. It places great strain on
the truth seeking function of the courts and
defense counsel must be vigilant in responding to such claims.